Beginning January 1, 2015, new regulations under the Fair Labor Standards Act will require the home care industry to pay its employees minimum wage for hours worked up to 40 hours a week and overtime for a week over 40 hours. It will increase labor costs and could have an impact on the quality and availability of home health care. This except briefly outlines those changes.

[U]nder the Fair Labor Standard Act, employers are required to pay employees minimum wage for hours worked up to 40 hours/week and time and half (overtime) for every hour worked over 40 hours/week. Two exemptions to this rule applicable to domestic services employment are the “companionship” exemption and the “live-in” exemption. The new rules narrowly interpret these exemptions thereby extending the FLSA protections to a host of in-home health care workers previously thought to be exempt, including certified nurse assistants (CNA), home health aides and personal care givers.

This Final Rule includes three (3) key changes that employers should be aware of. First, it narrowly defines the tasks that fall under the companionship exemption. Under the new rule, “companionship services” means providing fellowship and protection for an elderly person or person with an illness, injury or disability who requires assistance in caring for herself/himself. Fellowship and protection may include simply talking, playing games, accompanying the person to appointments or on walks, etc. The companion/employee also may directly provide “care” to the ill/elderly person (in addition to fellowship and protection) without losing the exemption, provided the “care” does not exceed 20% of the total hours worked by the employee in a given workweek. “Care” includes assisting with activities for daily living (dressing, grooming, feeding, bathing), and assisting with “instrumental activities of daily living” (meal preparation, driving, light housework, managing finances and physical taking of medications). If an employee spends greater than 20% of his or her time performing “care” in a given workweek, he or she is entitled to minimum wage and overtime. An employee performing medically-related services must be paid the minimum wage and is entitled to overtime.